updated 4/15/2004 10:27:36 AM ET 2004-04-15T14:27:36

Guest: Jamie Gorelick, Slade Gorton, Kristen Breitweiser and Lorie Van Auken, James Sensenbrenner, George Joulwan

CHRIS MATTHEWS, HOST:  The politics outside the 9/11 hearings.  The chairman of the House Judiciary Committee, Congressman James Sensenbrenner, calls for the resignation of 9/11 commissioner Jamie Gorelick.  We‘ll have both on HARDBALL tonight.

And the 9/11 widows respond to a columnist‘s attack on them in the “Wall Street Journal.”

Plus, the latest developments from Iraq.  Let‘s play HARDBALL. 

Good evening, I‘m Chris Matthews. 

The commission investigating the September 11 attacks heard testimony today from two key intelligence officials, CIA Director George Tenet and FBI Director Robert Mueller. 

But before we get to their testimonies, should Jamie Gorelick resign from her post on the 9/11 commission?  Attorney General John Ashcroft blamed her for writing a memo back in the ‘90s when she was deputy attorney general that made it difficult for the FBI to do intelligence work. 

And today Congressman Sensenbrenner from Wisconsin, a Republican, chairman of the House Judiciary Committee called for her to resign. 

Here‘s what he told me as to why she should step down. 

(BEGIN VIDEO CLIP)

REP. JAMES SENSENBRENNER (R-WI), CHAIRMAN, HOUSE JUDICIARY COMMITTEE: 

This wall that Gorelick signed off on is, I think, integral to figuring out why we have the intelligence and law enforcement failures that led up to 9/11.  And it is so pervasive in the work the 9/11 commission is considering that she ought to resign simply to have any report the commission comes up with be free of taint. 

(END VIDEO CLIP)

MATTHEWS:  My full interview with Congressman Sensenbrenner is coming up later in HARDBALL. 

But right now 9/11 commission Jamie Gorelick is here, along with fellow 9/11 commissioner Slade Gorton. 

Senator Gorton, do you have any thoughts on what Sensenbrenner pushing here?

SLADE GORTON, 9/11 COMMISSIONER:  I‘m just saying no way.  The beginning of that wall was way back in the Reagan administration. 

And the reason for it was a valid reason.  They were getting trouble from the courts.  The courts were not allowing the kind of cross-fertilization that the intelligence agencies would like to do. 

Then we came to the Aldridge Ames prosecution, and instead of going to court, they had to make a plea deal...

MATTHEWS:  Right.

GORTON:  ... largely on that amount.  So then Janet Reno, when she is attorney general, set up the formalities of that wall. 

But for the first eight months of the Ashcroft administration in the

Justice Department, nothing was done to take down that wall.  If they

thought they could take it down, they should have done so.  They actually -

·         they actually renewed it.  It took the Patriot Act, which changed the law, to allow the wall to be dismantled. 

MATTHEWS:  Let‘s talk about the conflict of interest potential.  Jamie, you‘re a commissioner.  You‘re ruling on how the department should be reorganized.  Can you do that, having had the history of making this call back in the ‘90s regarding this wall between intelligence gathering and criminal investigations, the FBI?

Well, No. 1, Chris, I‘m recused like anyone else on the commission would be from reviewing actions that I took. 

No. 2, the letter is a letter about the World Trade Center case. 

MATTHEWS:  Strictly for the southern district of New York?

GORELICK:  We had a—We had a case that we were trying to protect. 

There were—there were defendants in that case who the intelligence community wanted to put intelligence wiretaps on while they were defendants.  And we didn‘t want to lose the case or the intelligence.  And so we made a procedure to deal with that. 

After that, in 1995, regulations were put in place that have governed since and through the beginning of the Bush administration. 

MATTHEWS:  OK.  Let‘s talk about the hottest case of all, the Moussaoui case, Zacarias Moussaoui.  This guy is picked up, suspicious behavior.  He‘s trying to learn how to fly a 747, never flew a private plane, never flew a Piper Cub. 

In trying to get information out of him, we had—The government had to face that wall between prosecuting this guy and learning something from what he was up to. 

Senator, you answer this.  Do you think this wall got in the way of that?

GORTON:  Certainly the FBI thought that wall got—you know, got in the way of it.  But remember, this was well into it in the administration, which is it felt that it unilaterally could not down the wall, I suspect would do so. 

MATTHEWS:  So the wall died with the last administration?  Are you saying that?

GORTON:  The wall died when the Patriot Act was passed after 9/11.  It was a well-deserved death, but it took the Patriot Act to do it. 

MATTHEWS:  Let me ask you about—OK.

GORELICK:  I‘d like to say two things. 

No. 1, the Moussaoui issue came to the Justice Department after Larry Thompson, who was the deputy attorney general under John Ashcroft, wrote a memorandum ratifying and keeping in place the procedures that they are now complaining about.  That‘s No. 1. 

No. 2, if we were really worried about security, this fellow was being held on immigration charges.  We should have just said let‘s go ahead and get the information. 

MATTHEWS:  Immunity or whatever.

GORELICK:  If we taint the prosecution, the heck with it. 

MATTHEWS:  Let me ask you about—let me ask you about your role and the memorandum you wrote back in the ‘90s.  It was said it was above the law.  It was more than the law or the Constitution required in terms of protecting the rights of criminals being investigated. 

Why were you so concerned about the civil liberties of potential terrorists?

GORELICK:  This was a—This was a question of whether we would protect the conviction. 

MATTHEWS:  ... overrule.

GORELICK:  Yes.  I was afraid that if you used the intelligence capacities, which, you know...

MATTHEWS:  Of the FBI.

GORELICK:  ... you don‘t have the normal warrant procedures to get information on people you were prosecuting, that a judge might throw out that conviction. 

MATTHEWS:  What‘s the principle there?  Explain the principle to the non-lawyers like me.  Why is it important defense to put a wall between what the FBI does in terms of tracking down potential terrorists, possible terrorists, and putting a person in jail or executing a person?

Why does there have to be a separation?

GORELICK:  Look, in my view if we could have lowered that wall sooner, we should have.  I mean, I thought...

MATTHEWS:  Why did you raise it?

GORELICK:  No, I didn‘t raise it.  This was a statute where there was a foreign intelligence surveillance act in law.  I mean, look—look at what—it was in the law.  I didn‘t make this up.  I simply said let us create procedures that are super careful so that we don‘t lose a prosecution of terrorism. 

GORTON:  Tom Kean, our chairman summarized it this afternoon.  He said he would be very happy if Congressman Sensenbrenner and Congress would stay out of our business. 

We have created, with five Republicans and five Democrats, a very bipartisan, very cooperative venture in finding out the truth about 9/11.  We‘re going to do it.  I think we‘re going to do it unanimously, and this kind of garbage this afternoon did not help. 

MATTHEWS:  Let me ask you about what happened here Thursday.  Last week you took a shot at Attorney General Ashcroft for not following up on some intelligence we had during the summer of 2001 regarding terrorism. 

The next day, his guy Mark Caralla (ph) came out and attacked you by name.  And then over the weekend, this Monday, all of a sudden somebody reading the opening statement for the attorney general takes a direct shot at you. 

And then today Sensenbrenner, the chairman of the House Judiciary Committee takes a shot at you.  And then in your defense, John Conyers, who‘s the ranking Democrat on that committee—do you think you may have lit the fuse by last Thursday going so tough against Ashcroft that he‘s been fighting back at you ever since?

GORELICK:  Well, you know, I think I asked a very fair question. 

MATTHEWS:  Is he...

GORELICK:  Excuse me.  I didn‘t—excuse me. 

MATTHEWS:  Is he hot-tempered, Ashcroft?

GORELICK:  Can I finish a sentence here?  You know?  I didn‘t take a shot at anyone.  I asked a question. 

In other words, this was a question when Condi Rice was testifying. 

She said that she thought everything that could be done was being done.  And I wanted to share with her what our staff—not I—what our staff had found. 

MATTHEWS:  He sat on his butt.  That‘s what you were basically saying, last Thursday.  The guy hadn‘t done anything.  That‘s why he got mad at you. 

GORELICK:  We went around—Our staff went around to the people responsible for counterterrorism in the FBI around the country, and they said they hadn‘t heard about it.  And I said that. 

Look, my view is—and Slade and I have worked really hard to do this together, as all of the commissioners have.  We have to ask hard questions.  We have to have a strong factual predicate for our recommendations.  I‘m not—I‘m not bringing a partisan axe to grind here.  This is crazy. 

MATTHEWS:  What do you make of the couple of commissioners heading down to the White House and having meetings down there before they operate as commissioners in the hearings?  Is that a conflict, a couple Republican guys checking in at the White House?

GORTON:  Our people aren‘t taking instructions from anybody.  Most of the trips to the White House have been to try to shake loose, you know, some of these witnesses and some of the documents that we‘ve needed, that we now have. 

I think we are right on the verge of having all the information we need to write an objective report and to come up with good recommendations.  But it hasn‘t always been easy. 

MATTHEWS:  Are you leaning toward a tough criticism of the FBI? 

Yourself?

GORTON:  I am leaning toward laying out the facts as dispassionately and objectively as possible.  And I will allow you to decide whether there is any blame...

MATTHEWS:  Weren‘t you shocked that Thomas Pickard, who was acting FBI director during the 9/11 attacks, didn‘t know about the president being briefed on terrorism five weeks before, didn‘t know there was a Phoenix case of somebody worried about people taking flight training, didn‘t know there was a guy named Moussaoui up in Minnesota with the same situation?  Didn‘t know about the two guys who were on the list who was living out—on the phone book in San Diego? 

How could one FBI director be so out to lunch, Jamie?

GORELICK:  He didn‘t have the systems that would allow him to get that information.  I mean, the information—I think it just sat. 

MATTHEWS:  What I don‘t understand is how the president of the United

States can go to the CIA and ask for information, if he did, in September -

·         August, ask for information about terrorist threats in this country from al Qaeda.  And the person who answered that question at the FBI never told the boss that the president was curious. 

GORELICK:  It‘s incredible.  If I had been Tom Pickard...

MATTHEWS:  Would you agree, Senator, that it‘s incredible?  That the FBI didn‘t run it up: “Hey, boss, the president wants to know about a domestic threat to our country.” 

GORTON:  I do.  That just came from someone lower down in the hierarchy, and it was an exaggeration. 

MATTHEWS:  Seventy full field investigations.  Not true.

GORTON:  Seventy full field investigations.

MATTHEWS:  What a shoddy operations.

We‘re going to come right back with two of the 9/11 commissioners, Slade Gorton, former senator from Washington state, and Jamie Gorelick, former deputy attorney general in the Clinton administration. 

And later, how can the coalition stop the rising violence in Iraq? 

That‘s a big one.  We‘ve got a great guest tonight, General George Joulwan

·         what a great guy—the former supreme commander in Europe.  He‘ll be here to talk about it.  He has some interesting ideas. 

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, more with the 9/11 commissioners, Slade Gorton and Jamie Gorelick, on the testimony today from CIA Director George Tenet and FBI Director Robert Mueller.  HARDBALL, back in a minute.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with 9/11 commissioners Jamie Gorelick and Slade Gorton. 

This morning at the 9/11 hearings, Commissioner Tim Roemer, a former Democratic congressman, pressed CIA Director George Tenet on why he and President Bush didn‘t speak at all throughout the month of August, 2001, that month before 9/11.

Let‘s take a look. 

(BEGIN VIDEO CLIP)

TIMOTHY ROEMER, 9/11 COMMISSION MEMBER:  You don‘t see the president of the United States once in the month of August?

GEORGE TENET, CIA DIRECTOR:  He‘s in Texas and I‘m either here or on leave for some of that time.  So I‘m not here. 

ROEMER:  Who‘s briefing him on PDB‘s?

TENET:  The briefer himself.  We have a presidential briefer. 

ROEMER:  But you never get on the phone or any kind of conference with him to talk at this level of high chatter and huge warnings during the spring and summer to talk to him during the whole month of August?

TENET:  We talked to him directly throughout the spring and early summer almost every day. 

ROEMER:  But not in August?

TENET:  In this time period I‘m not talking to him, no. 

ROEMER:  Does he ever say to Dr. Rice or somebody else, “I want to talk to Tenet.  Tenet is a guy who knows this situation, who‘s been briefing me all through the spring and the summer.  Tenet understands this stuff.  His hair has been on fire.  He‘s been worried about this stuff”?

Is that ever asked or are you ever called on to...

TENET:  I don‘t have a recollection of being called, Mr. Roemer, but I‘m sure if I wanted to make a phone call because I had my hair on fire, I would have picked up the phone and talked to the president. 

(END VIDEO CLIP)

MATTHEWS:  Commissioners, probably the most famous picture that‘s

going to come out of these hearings so far is that moment when Condi Rice,

the former—the current national security adviser, was asked to name the

·         give the name and title of the memorandum given the president on August 6.  And she did that sort of wonderfully, debonair, casual, I think it was called “Bin Laden Determined to Strike within the United States.”

Now, of course, that‘s a pretty frightening title.  But don‘t you think the president would have at some point between then and 9/11 called up George Tenet and said, “Let‘s get together on this thing?”  Senator?

GORTON:  Remember that 70 full field investigations?

MATTHEWS:  Yes. 

GORTON:  In effect, they said we‘re on top of this.  We‘re working this. 

MATTHEWS:  The FBI. 

GORTON:  As George Tenet said, if he had anything to talk to the president about, he would have talked to the president about it. 

To be blunt with you, nothing happened.  They didn‘t discover anything else in that period of time, except for the fact that the CIA finally got the names of those two people very tardily to the FBI. 

MATTHEWS:  Those were the names of the people in the phone book out in San Diego. 

GORTON:  Yes.

MATTHEWS:  But let me ask you the question...

GORTON:  It was a very routine fashion by the FBI.

MATTHEWS:  One little glimmer of hope in this whole thing, watching this thing on television, is that the CIA director somehow got wind of the Moussaoui situation. 

And he knew when he was sitting at breakfast—I go over this time and again because it‘s so fascinating.  When he was having breakfast with the former chairman of the Senate Intelligence Committee, David Boren, your former colleague, who was then and still is president of the University of Oklahoma, he apparently said, according to Boren—because he must be the source for this, because it ain‘t this guy, the CIA director—“I hope it‘s not that guy trying to get flying lessons.” 

So the president of the United States, unfortunately, simply said, “That‘s one bad pilot.”  He had no clue that there was something called al Qaeda coming to get us.  He thought it somebody who accidentally flew across the entire Hudson River and ended up blasting into a building by accident. 

But the CIA director was on top of this.  His synapses said to him, “My God, this is that guy taking the lessons.” 

What does that tell you?  The fact that it didn‘t get through the FBI, it didn‘t go through natural channels, but it ended up with the CIA director who had done nothing about it?

GORELICK:  Well, first of all, it tells you a little bit of something about the FBI and the CIA.

I asked Pickard, the acting director, how did he feel when he heard that the CIA director had been briefed on his case in a briefing entitled “Islamic Extremist Learns to Fly,” wants to learn to fly.  It went sideways to the CIA and up the CIA channel, and did not go up within the FBI at all. 

MATTHEWS:  I‘ve got news to give you guys.  Have you heard this, that even though Tenet said that he didn‘t meet with the president all during August, he apparently met with him twice.  He met with him on the 17th and the 31st of August.  He‘s just reviewed his records.  That guy‘s got bad memory after all. 

Why can‘t he remember meeting with the president twice in August?

GORELICK:  You were just complimenting him a minute ago. 

MATTHEWS:  Yes, I take that back.  No, I‘m serious.  He didn‘t remember this.  So what do you make that he didn‘t talk to the president about this flight situation, this flight education that‘s going on in the country by these Arab guys?

No comment?  Are you amazed that he didn‘t give you a straight answer today, he had to go get it dug up?

GORTON:  No.  You know, that‘s a long time ago, and you go through a lot of things.  Look, the guy went back there and found out he made a mistake and he‘s correcting himself. 

MATTHEWS:  Are you amazed at the number of times he said today I‘ll get back to you on that?

GORTON:  No.  Remember, there are two reasons that he would have to say that.  The first reason would be that he genuinely didn‘t remember.  And the second reason might be that the answer he still feels is classified information, and he wants to do it...

MATTHEWS:  He also met with the president six of eight, the first eight days of September right before 9/11. 

Anyway, Jamie Gorelick, thank you for joining us, former deputy attorney general of the Clinton administration, and Slade Gorton, long time U.S. senator. 

A full transcript of today‘s testimony.  Log on to get it:

HARDBALL.MSNBC.com.

Up next, two women who lost their husbands on September 11 react to today‘s hearings.  And they‘re tough, and they‘re smart, and they‘re prepared and well researched. 

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  Earlier today I spoke with Kristen Breitweiser and Lorie Van Auken, two widows who fought for the creation of the 9/11. 

I asked them about a highly critical op-ed about them today in the “Wall Street Journal.”  Here‘s what they said.

(BEGIN VIDEOTAPE)

KRISTEN BREITWEISER, 9/11 WIDOW:  I think there is a nuance that needs to be understood.  I‘m well aware of the fact that 19 hijackers killed my husband.  And I‘m also well aware of the fact that my government failed to mitigate any damage. 

I don‘t think the government killed my husband.  I think that they failed to save lives.  And I think if you do a truthful, constructive examination of the failures that occurred that day, you would learn that there were things that could have been done that would have saved lives. 

If you look towards the rescue workers in New York and the uncommon valor that they showed, if you look towards the gentleman from Morgan Stanley, that is the same effort, the same insight that I would have hoped that our government would have had with regard to NORAD, with regard to the FBI and the CIA, the FAA, the INS.  And unfortunately, that didn‘t occur. 

MATTHEWS:  You wanted to see more initiative like we got from the RAF during World War II?

BREITWEISER:  Listen, I heard a lot of talk about not having actionable intelligence.  Where was the initiative to make the intelligence that they had actionable?  That‘s someone‘s job. 

MATTHEWS:  The president, you mean?

BREITWEISER:  That‘s someone‘s job to say—to turn to the intel agencies and say, “Make it actionable.”

MATTHEWS:  OK.  Are you concerned that the president and the CIA director didn‘t talk in the entire month of August before 9/11?

BREITWEISER:  You know, the president was on vacation.  I think what‘s scary is that we have now announced to the terrorists that there‘s a nice time to attack us, and that‘s in the month of August when everyone is on vacation and at the transition period when we have a new administration coming in. 

MATTHEWS:  Right.

BREITWEISER:  And I‘m hoping that the commission will address those loopholes and those time periods so that that doesn‘t happen again. 

MATTHEWS:  OK.  Let me go to Lorie.  Lorie, your thoughts about the “Wall Street Journal” piece, written by Dorothy Rabinowitz, trashing—well, blasting you women for coming out against—so critically of the government?

VAN AUKEN:  You know, we are—we‘re saying the things that we think are right to say.  We feel really what we‘re doing is patriotic because we see problems that were not being addressed. 

And I think in some way we‘ve actually been vindicated, because everybody is saying that the commission is actually doing some very good work.  We‘re finding structural problems with different agencies.  And nobody was looking at this. 

So I think we‘ve been vindicated in asking for the 9/11 commission.  

(END VIDEOTAPE)

MATTHEWS:  Well, since those interviews, by the way, CIA Director—what‘s his name?  We have to stop right here.  We have to stop here.  George Tenet—I got him confused. 

George Tenet has said that he did search his memory and come back with the fact that he had met with the president twice during August right before 9/11. 

Commissioner Richard Ben-Veniste said today that NORAD had considered a scenario where planes were used as missiles and flown into the Pentagon.  This is before 9/11 they were thinking about this. 

Let‘s look at what he said and how Kristen and Lorie responded. 

(BEGIN VIDEOTAPE)

RICHARD BEN-VENISTE, 9/11 COMMISSION MEMBER:  A couple of months before September 11, we know that there was a planning session by NORAD where military officials considered a scenario in which a hijacked foreign commercial airliner flew into the Pentagon.  Months before.  And so people clearly were thinking about this possibility. 

MATTHEWS:  Kristen? BREITWEISER:  Yes?

MATTHEWS:  Well, look how far we‘ve come, thanks to your pestering of the United States government. 

We‘ve come from a government which absolutely denied that they could even imagine planes being used as missiles to a government that is coughing up all this information: NORAD, the plans regarding the Olympics in Atlanta in 1996, the plans regarding the G-8 meeting that summer of 2001.

It‘s funny how everybody, when tickled a little bit, starts coughing and getting information out.  Talk about it if you will. 

BREITWEISER:  Chris, I think that one of the things that we need to get answered now is that at the end of that statement made by Ms. Rice is the fact that they were expecting a traditional hijacking.  Which raises the question, why then, expecting a traditional hijacking in the summer of 2001, NORAD was still in a post-Cold War posture looking out. 

We had absolutely no air defense over New York and Washington.  The F-16‘s were very, very late.  The FAA was late in notifying NORAD.  We need to find out why we were ill prepared for a traditional hijacking, which Ms.  Rice has raised was what they were expecting. 

VAN AUKEN:  Can I add something to that?

MATTHEWS:  Sure, go ahead, Lorie.

VAN AUKEN:  You know, we‘re women and I think that for us, we don‘t play shoot them up as young kids.  We basically, you know, will lock the door if we see a problem or get a dog or buy an alarm.  We think about defense. 

And one of the things that, you know—We understand the offensive side of all of this, but we have always asked the question, why were we so undefended on 9/11?  And I think that still needs to be asked, and the commission still needs to look at it. 

(END VIDEOTAPE)

MATTHEWS:  OK.  Coming up, Congressman James Sensenbrenner joins us.

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  This half-hour on HARDBALL, Congressman James Sensenbrenner on why he wants 9/11 commissioner Jamie Gorelick to resign from the commission.  Plus, stopping the violence and kidnapping against Americans and other Westerners in Iraq.  General George Joulwan will be here.

But, first, the latest headlines right now. 

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL.

Congressman James Sensenbrenner is a Wisconsin Republican.  He‘s chairman of the House Judiciary Committee.  He is calling for the resignation of 9/11 Commissioner Jamie Gorelick. 

Congressman, Mr. Chairman, thank you for joining us on HARDBALL tonight. 

Last Thursday, during the hearings, Jamie Gorelick, the person you‘d like to see resign from the committee, took a pretty direct shot at John Ashcroft, saying that he—there‘s no evidence that he took any activity, that he did anything following disclosure of terrorist threats to the United States in the summer of 2001.  Does that—was that shot by her against Ashcroft—do you think that played a role in Ashcroft taking a shot at her yesterday, when he basically said she was the author of the wall between the criminal and the intelligence operations of the FBI? 

REP. JAMES SENSENBRENNER ®, WISCONSIN:  I don‘t think so. 

The issue of whether Gorelick is allowed to continue to serve as a commissioner goes right to the rules and guidelines of the commission on recusals that says—quote—“Commissioners and staff will recuse themselves from investigating work they performed in prior government service.”  The memo that Gorelick signed in 1995 was declassified yesterday. 

And the public and I didn‘t know about it until it was declassified. 

MATTHEWS:  Right. 

SENSENBRENNER:  This wall that Gorelick signed off on is, I think, integral to figuring out why we have the intelligence and law enforcement failures that led up to 9/11, and it is so pervasive in the work the 9/11 Commission is considering, that she ought to resign simply to have any report the commission comes up with be free of taint.   

MATTHEWS:  How do you have a commission which would then become 5-4 Republican?  How would it be bipartisan if Jamie Gorelick were to step down, leaving one Democratic seat empty? 

SENSENBRENNER:  Well, I think the Democratic seat could be filled. 

(CROSSTALK)

MATTHEWS:  After all the hearings at this point, after hearing from all the testimony, you would put a new person in there? 

SENSENBRENNER:  Chris, a conflict of interest is a conflict of interest.  And this conflict of interest did not come to light until the Gorelick memorandum was declassified. 

Now, let‘s look at what‘s happened.  There has been one person, a Cofer Black, who was the head counterterrorism official at the CIA, that said that the wall that Gorelick created impeded the investigation of Khalid al-Midhar Nawaq Alhamzi, who were the Pentagon hijackers, and they were involved in the USS Cole bombing, and the CIA knew that they were in the United States but couldn‘t communicate with the FBI because of Gorelick‘s wall. 

Come on, now, Chris.  You know, that‘s the kind of thing that goes to the heart of the 9/11 Commission.  Now, I‘m all for bipartisanship, but Gorelick, before she accepted this appointment, should have known that the memorandum creating the wall which went much beyond the law would be an issue in determining what happened and what we ought to do to make sure it doesn‘t happen again. 

MATTHEWS:  Well, let me ask you about some other potential conflicts.  You have Congressman Roemer, the former congressman from Indiana.  You‘ve got Lee Hamilton, of course, a former Democratic congressman, a ranking member, a very highly respected member, was a member.  You have Bob Kerrey, all voted on appropriations for Judiciary, for the Justice Department, for the FBI over the course of their careers.  The issue here is adequate funding.  That‘s also come up in these hearings. 

Do you have the right manpower, that‘s come up in almost every day of testimony, not enough bodies, not enough money.  Why wouldn‘t those members also be suspect in terms of conflicts? 

SENSENBRENNER:  Well, there‘s a difference between voting as a legislator, a senator being one of 100 and the representative being one of 435, and someone who has executive branch responsibilities that determines what type of regulations there are, and in this case how high the wall was. 

MATTHEWS:  Right. 

SENSENBRENNER:  So neither of my three former colleagues would have been able to set policy that ended up being implemented executive branch-wide.  Gorelick was in a position to do that.  So there‘s a difference between her conflict and the votes that were cast by one former senator and two former congressmen. 

MATTHEWS:  What about Fred Fielding, a member of the commission, and James Thompson, both Republican appointees to the commission, going down to the White House and checking in with them before they participated in the hearings?  Does that strike you as a conflict?  Because Congressman Henry Waxman, a Democrat from California, he says it is a conflict.  Is that a conflict as you see it? 

SENSENBRENNER:  Well, I‘m just looking at the rules on recusals that I quoted to you earlier. 

MATTHEWS:  Right. 

SENSENBRENNER:  Going down and talking to somebody, whether it‘s Republicans talking to the Republican White House or Democrats talking to President Clinton or Attorney General Reno, is not a conflict. 

You know, the thing is, is that you try to get information.  Information can be obtained in a lot of manners, not just what the staff does or what you find out at the hearings.  But in terms of prepping yourself for the hearings, there‘s lots of informal ways of getting information. 

(CROSSTALK)

MATTHEWS:  Have you talked—Congressman, we only have a couple—a minute here.  Have you talked to Mark Keroe (ph) or anyone in the attorney general‘s office about your decision to call for the resignation of Jamie Gorelick? 

SENSENBRENNER:  No, I have not.  A conflict of interests is...

MATTHEWS:  None of your staff—none of your staff nor you have had any contact with Justice Department employees or the A.G. himself in making this decision to call for the resignation?  No contact at all? 

SENSENBRENNER:  I made the decision yesterday when the memo was declassified and matching what was in that memo against the commission‘s own guidelines for recusals.  That speaks for itself. 

MATTHEWS:  I accept that.  No, it doesn‘t, because the question is now, have you had any conversations with the Justice Department or your staff? 

SENSENBRENNER:  I‘ve had about 20 open forums in Wisconsin the last two days.  I‘ve been too busy to talk to anybody in the Justice Department. 

MATTHEWS:  OK. 

SENSENBRENNER:  I‘m just doing my job.  There‘s a conflict here, and it ought to be addressed. 

MATTHEWS:  OK, thank you very much.  Great having you on the show, Congressman James Sensenbrenner, Republican, ranking...

SENSENBRENNER:  Thank you. 

MATTHEWS:  In fact, chairman of the House Judiciary Committee. 

Up next, we‘ll get the latest from Iraq and ask former Supreme Commander General George Joulwan about the best way to win the war on there.  He‘s pretty good on this.  Wait until you hear him.

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Stopping the violence against Americans in Iraq.  We‘ll talk with former Supreme Allied Commander General George Joulwan when HARDBALL returns.

(COMMERCIAL BREAK)

MATTHEWS:   Welcome back to HARDBALL. 

Soldiers in Iraq continued fighting today on two fronts, the first in Najaf, where troops are closing the noose on cleric Muqtada al-Sadr, the second in Fallujah, where intense fighting will almost certainly end the truce with Sunni militia that has been in effect since Friday. 

NBC‘s Carl Rochelle joins us now with the latest—Carl.

CARL ROCHELLE, NBC CORRESPONDENT:  Chris, there is a great deal of fighting going on.  There is some of that action up around Fallujah.  There has been sporadic fighting off and on all day today. 

U.S. forces have moved in the area trying around Najaf trying to bring that area under control, hopefully coming to some sort of accord with Muqtada al-Sadr, the Shiite cleric who has declared war on the U.S.  Hopefully, they can to some agreement there before it goes to a pitched battle.  But they are moving forces into the area. 

But breaking news, Chris.  We have just learned through Al-Jazeera, the Arab television network, that one of those four Italian hostages, according to them, has been killed by a group identifying itself as the Green Brigade.  The Green Brigade says they have killed one of those four Italian hostages who have been held for the last several days, and they said they did that because of the refusal of both the prime minister and the foreign minister of Italy to pull their forces out of Iraq. 

That was the challenge, pull them out or we kill—they‘ve already killed one.  And we are told, according to the information being broadcast by Al-Jazeera, that the other three hostages are at risk.  You‘ll also recall the Japanese hostages.  We still don‘t know the fate of them.  They were at risk of being burned alive, if the Japanese didn‘t pull their forces out of Iraq.  The Japanese have refused to do that also. 

And Thomas Hamill, the American we saw on Al-Jazeera over the weekend and on Friday and Saturday with footage made by Australian broadcasting, also under a death threat if the U.S. does not pull its troops back from the area around Fallujah. 

Now, one of the things we do not know, Chris, is whether all of these groups that have taken these hostages are aligned together and we don‘t know whether they‘re part of Muqtada al-Sadr‘s group also.  We do know that these hostages are out there and we do know that there is some risk.  Yesterday, the Coalition Provision Authority said there were 40, at least 40, individuals from at least a dozen different countries who had been taken hostage. 

So there is fighting going on at the military level and engagements going on at the military level, but very threatening and very, very scary, this situation with the hostages, Chris. 

MATTHEWS:  OK, thank you very much, Carl Rochelle, who is Baghdad.

General George Joulwan was the supreme allied commander in Europe. 

General Joulwan, it‘s a tough one.  We have a three-front situation. 

Let‘s start with the tricky, almost nonmilitary question of hostages.  These are people that are wandering the streets.  They‘re picked up.  Not hard to do, pick them up, grab them like a kidnapping.  But in this case, it‘s not ransom money they want.  It‘s for whole nations to pull out of the coalition.  What can we do? 

RETIRED GEN. GEORGE JOULWAN, U.S. ARMY:  I‘ll tell you, it‘s going to be very difficult.  It‘s going to be very difficult, and more hostages will be taken. 

What has to happen is you must create, even if it‘s a year late, a secure environment in Iraq.  That means you have to control movement of vehicles and of individuals from NGOs, from aid organization, from contractors.  That must be controlled.  Now, if you don‘t do that now, we‘re going to have more hostages. 

MATTHEWS:  We have trouble keeping control of our own streets in this country.  We have tough neighborhoods where police don‘t like to patrol on foot.  These are Americans living in dangerous neighborhoods.  How do we as Americans go to a country of 25 million people with an assault force of 100-some-thousand people?  How can we be Officer Krupke on every block? 

JOULWAN:  You can‘t. 

(CROSSTALK)

MATTHEWS:  The Iraqis are useless.  They don‘t want to do anything. 

JOULWAN:  You have to control the Americans moving.  I‘m not saying you can control all the Iraqis. 

MATTHEWS:  So it‘s point defense.

JOULWAN:  No, you control the movement of people, of vehicles.  That must be done. 

MATTHEWS:  Shotgun guards basically wherever somebody goes? 

JOULWAN:  Well, you go into a controlled area.  You have escorts. 

That‘s why I think you‘re going to need more personnel.  And the commanders are wrestling with this.  You cannot go down these roads now.  You‘re going to get blown up. 

MATTHEWS:  We had guys riding down the green zone.  And the green zone that rocket attacked today.  This is a big compound.  It probably drives those people crazy, because you go home at night for hamburgers and steaks and they‘re sitting out there taking fire from their fellow Iraqis at midnight, right? 

JOULWAN:  Well...

(CROSSTALK)

MATTHEWS:  That‘s our problem.  Our allies are not—our allies can‘t join our compound at night. 

JOULWAN:  It‘s a challenge.  The issue is when we initially went in there, you must, to use my words, impose your will on the enemy. 

MATTHEWS:  That‘s the definition of victory in a military sense

JOULWAN:  And when you go in, as we did, and you don‘t do that, you don‘t secure the borders, you don‘t impose your will, this unraveling takes place. 

Now, we are where we are.  And I think what has to happen now, and I hope our commanders are doing this, they‘re going to have to reassert this control. 

MATTHEWS:  We have three areas of the country all have come under—

Kurdistan, which is very pro-American, the Sunni area, which is the defeated party.  They were with Saddam Hussein.  They lost this war.  They don‘t like us. 

The Shia, the majority, largely in the south, but also up through the country, about 65 percent of the people, mixed bag, mostly calm under Sistani, Ayatollah Sistani, but a lot of people are getting antsy about us being there.  Should we occupy literally the entire country to bring peace to that country?  Should we put troops on every block? 

JOULWAN:  Not on every block.  But you have to create this secure environment and the commanders are going to have to understand what does it take to do that.  Then you can go about turning on the electricity, running the water and letting the NGOs and other organizations get out there. 

But until you have that secure environment, it‘s going to be very, very difficult.  And I would just add that I think what has to happen now is that—if I could use the term moderate Iraqis, we have got to work with them in a way that creates this sort of support.  The problem you have now is you have the Shias in Najaf and the Baathists and the Sunni in Fallujah, and what we‘re having is, as you said before, a two-front war.  If those two join up, we‘re going to have serious problems. 

MATTHEWS:  Let‘s talk about we deal with the situation in Fallujah.  This is classic occupying politics, occupation politics, whether it‘s us, the good guys, or the Germans or Japanese or anybody.  When there‘s an atrocity committed against the occupying force, like those four Americans who were killed and then their bodies desecrated, hung by the bridge there, the normal reaction is to go in on basically a punitive raid.  They go in and clear the streets block by block. 

Isn‘t that the tactic, tactical response that the terrorists want?  We go in there and kick butt.  We kill more people.  We‘ve killed hundreds already going block by block.  Was that a smart response? 

JOULWAN:  I don‘t want to second guess the commanders.  All I would say is that, when you analyze the situation, it‘s a town of 250,000 people.  This isn‘t a hamlet somewhere. 

MATTHEWS:  Right. 

JOULWAN:  And so you have to take that into consideration.  What has to happen is, the Iraqis we‘ve trained, the Iraqi leadership, all of those people, you need their support to get...

MATTHEWS:  But they ran when the fighting started. 

JOULWAN:  Well, some of them went in there and tried to really try to get some justice done.  The problem is, if there‘s not a secure environment for them to work in, then you‘re going to have this mob rule and that‘s what‘s happening now. 

MATTHEWS:  You think the mistake we made was to basically island-hop, grab certain towns, hold certain areas, but leave a lot of exposed to the enemy, basically. 

JOULWAN:  Let me try...

MATTHEWS:  Well, Fallujah, for example, we left that open as wide open bit of territory.  It was like Indian territory back in the Old West.  Nobody went in there until those four guys went in there, and nobody protected them. 

JOULWAN:  We have great commanders on the ground.  What I really don‘t understand yet is the political clarity of that what force was supposed to do. 

It is not just good enough to take Baghdad and defeat the Army.  You must impose your will on the enemy, and that takes more troops, in my opinion, than we had there and a clarity about this is what you want done.  Without that, Chris, it‘s very, very difficult to do all the things that need to get done. 

MATTHEWS:  Do you think the political thinking that went into this war

·         forget whether we should have gone in or not—but the political thinking that said, basically, once we get in there, they‘re going to be on our side, was wrong thinking? 

JOULWAN:  It was—let me use correct terms here.  There were assumptions made that certain things would happen.  Those assumptions proved to be false or faulty. 

MATTHEWS:  All of them, by the way, by my count.

JOULWAN:  And what has to happen...

MATTHEWS:  Yes?

JOULWAN:  ... you had a Corps commander, when he took Baghdad, said, we ran into more opposition than we anticipated. 

MATTHEWS:  Right. 

JOULWAN:  He gets his butt chewed back here for saying something like that, rather than react to it.  How do you quickly adapt your plan to react to it? 

Now, I don‘t want to second guess these guys but that, to me, is a clear example of how we did not understand the threats that we were going to face.  They didn‘t.  The Iraqi army didn‘t melt away.  We weren‘t greeted as liberators.  And all of that...

MATTHEWS:  Where‘s all this ordnance coming from, all this firepower they‘re using for these IEDs, blowing up legs and arms off of guys running along in Humvees?  All that TNT, where is it coming from? 

JOULWAN:  It‘s this has been—Saddam Hussein has been stockpiling this for a long, long time. 

Remember, when we went in in the first Gulf War, we only liberated Kuwait.  All that other stuff remained in Iraq.  And part of this—to me, part of this stabilization mission, you know, you go from normalization—or, excuse me, from implementation of the war fight to stabilization to normalization.  We did the war fight.  But the stabilization as a mission, where you try to stabilize a country, we didn‘t do well, which means disarming the factions, taking as much of the heavy weapons as you can. 

MATTHEWS:  Was Shinseki right in saying we needed hundreds of thousands of troops to do this right? 

JOULWAN:  I think it was good advice. 

MATTHEWS:  But it was blasted for being spoken. 

JOULWAN:  That‘s in our democratic system. 

MATTHEWS:  Do we have too many commissars, political commissars, in this war and not enough soldiers? 

JOULWAN:  I just there has to be some accountability at the end of all this.

MATTHEWS:  OK, you‘re being very careful, but we get your drift, General.

General Joulwan will be staying with us.  Stick with us.  We‘ll get more from his wisdom and battle experience. 

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with General George Joulwan. 

Assuming we‘re stuck in Iraq, and we are, the joy of leadership is finding a way—and I‘m being a little sarcastic—is to find a way to get us through this.  Now you say a tough approach.  Basically, when we win a war of annihilation, which is the term used for defeating Japan or Germany, you remove their leadership and you impose your national will, your military rule completely on these people.  Why don‘t we have Iraq under marshal law basically right now? 

JOULWAN:  Well, that‘s one of the early decisions.  I‘m not sure annihilation is the right word. 

MATTHEWS:  Well, it‘s term used.  You‘re the military historian. 

(CROSSTALK)

JOULWAN:  Yes, but you‘re not after annihilating...

MATTHEWS:  The leadership.

JOULWAN:  Leadership, like we did in Japan and Germany. 

But the idea of imposing one‘s will is extremely important in the early going.  So for example, in Bosnia, in the first 30 days, we separated the force.  We transferred land.  And in six months, we disarmed everyone.  And we made it very clear that, if you cross that inter-entity boundary, you will be shot, that if you point a weapon at any one of the troops, that sergeant will shoot back and shoot back to kill.  And he doesn‘t have to go Boutros Boutros-Ghali or me for permission. 

MATTHEWS:  Right. 

JOULWAN:  The clarity is what you need to—this is what I mean by imposing your will.  And we took tanks in there.  We took heavy armor in there, not because we thought we were going to fight, but it was to make it very clear that we‘re serious about what we‘re doing.  And we didn‘t lose a single soldier to hostile fire in eight years. 

MATTHEWS:  How do you do that again?  For example, the Sunnis, about 20 percent of the country in Iraq, who are very well armed—we talked about it during the break—they have lots of arms and ammunition and all kinds of ordnance and gunpowder, basically, left over from the regime. 

JOULWAN:  That should have been done in my opinion in the first six months.  You should have gone in...

MATTHEWS:  Confiscation.

JOULWAN:  Gone in there, taken, disarmed everyone, made it very clear that, in that Sunni Triangle, that‘s what you were going to do and get rid of all that stuff, when we had the momentum going in, the fear factor that we were in charge and this is what needs to happen.  We‘re very good at the war fight. 

We haven‘t been very good at stabilizing that country which isn‘t just nation building.  There‘s a combat and a nation building component to it.  We don‘t understand that.  And it‘s going to happen again.

MATTHEWS:  Why don‘t we turn over Iraq to the strongest Iraqi in the country, which is the Ayatollah Sistani?  And there‘s a paradigm.  When the South African whites, the minority government, knew their days were numbered down there, they went out and found the true hero of the people, Mandela, let him out of prison and basically negotiated their way out of power. 

Why don‘t we—although it‘s not exactly the same.  We are not going to stay in Iraq.  So, somebody is going to take over Iraq besides us.  Why don‘t we try to find the strongest person in the country and give the country back to them, instead of all this elections and governing councils and all this stuff?

JOULWAN:  I think there‘s another option.  And the other option—and it may not—people may not like the taste of it—is the U.N.

MATTHEWS:  Yes. 

JOULWAN:  Why not get the U.N. not to do the war fight, but to help in the stabilization of the country, to get some legitimacy by the U.N. to really say, this is what...

MATTHEWS:  Right. 

JOULWAN:  And put the whole weight of 200 nations behind it.  That, to me...

MATTHEWS:  Well, because they‘ve got 40 hostages right now from all these countries.  Who is going to join us over there? 

JOULWAN:  Yes, but that just occurred in the last 30 days. 

MATTHEWS:  Right.  I understand.

JOULWAN:  I‘m saying, when we initially went in.  It‘s very important. 

MATTHEWS:  OK, thank you very much.  It‘s great having you on the show, General George Joulwan. 

Join us again tomorrow night at 7:00 Eastern for more HARDBALL.  Our guests will include Ted Koppel. 

Right now, it‘s time for the “COUNTDOWN” with Keith.

END   

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